Federal Court May Rehear Case for Postponing Calif. Recall Vote

The state of California has until 2 p.m. today to file its briefs seeking a full review by the 9th Circuit Court of Appeals (search) of Monday's decision by a three-judge panel from the court to postpone California's gubernatorial recall election (search).

The court's judges voted Tuesday to consider a challenge to the decision. If briefs are submitted for review, any Circuit Court judge can call for a vote on whether to take the case to an en banc -- or full court -- review.

A majority of the Circuit Court judges must agree for an en banc review to take place. An 11-judge panel, comprised of the chief justice and 10 randomly selected associate justices, would then hear the case.

Secretary of State Kevin Shelley (search) announced late Tuesday that the state would accept the court's offer and submit papers for consideration.

"It is in everyone's best interest that this case be heard swiftly and considered thoroughly so the court can resolve these legal issues with the finality that the voters expect and deserve," he said.

According to legal experts, the court's move to receive briefs to discuss whether to proceed to a full review indicates some internal distress over the three-judge panel's decision Monday to postpone the election.

The three judges ruled that they would not allow the election to go on as scheduled Oct. 7 because punch-card ballots used in six of the state's 58 counties would disenfranchise voters due to its disproportionately high error rate.

But the court also stayed its decision for one week to give recall supporters the chance to file an appeal. The 9th Circuit Court, considered by many to be the most liberal in the country, may still decide to stop the election.

That decision could end up sending the case to the U.S. Supreme Court. But for now, the high court is out of the fray and probably will remain so until the appeals court decides whether to take the case and then whether to uphold or overturn the three-judge panel. In the past, the high court has refused to review requests for a stay while a lower court was reviewing the pending case.

"This probably means that the Supreme Court will not intervene until the appeals court says what it is going to do," said Rory Little, a Hastings College of the Law professor who closely follows the appeals court. "It most likely delays any Supreme Court action until the court acts."

Immediately after the Monday decision was released, supporters of the recall said they would appeal the case.

The recall election was scheduled after opponents of Democratic Gov. Gray Davis (search)  gathered enough signatures to demand a new vote on his tenure. While Democrats have largely said they oppose the recall, many, including Lt. Gov. Cruz Bustamante, recognized that Davis' unpopularity could sink him and leave the governor's seat in Republican hands.

Bustamante, who shares no love lost with Davis, decided to step into the race on the campaign of "no on recall, yes on Bustamante" since even people who oppose the recall can vote for a replacement.

On Tuesday at an event in which environmental groups announced their endorsement for him, Bustamante said the court's work was not his concern.

"All those legal matters, the place that they need to be resolved is not the political arena -- they are going to be resolved in the courts," Bustamante said before the federal court issued its latest order.

The three judges did not say how long the election should be delayed, but suggested that the request by the American Civil Liberties Union (search) -- the group representing opponents of the Oct. 7 recall -- that the election be put off until the March 2 presidential primary would give the counties time to meet the deadline for replacing the punch card machines.

But the Los Angeles County registrar's office told the Board of Supervisors on Tuesday that 135 gubernatorial candidates combined with the up to 10 Democratic presidential candidates and local candidates would overload the March ballot. The office said it may require two separate voting machines in the booth, one for the recall and one for everything else.

Adding to the confusion, one quarter of all voters in the state live in Los Angeles County, one of the counties the ACLU argued would be disenfranchised by the early election. Los Angeles County officials said Tuesday that they have already started receiving back absentee ballots sent out last week, and so far the volume is about the number they would get in a presidential election.

The full bench of federal appeals courts frequently rehear controversial cases decided by smaller judicial panels. However, it would be a big move for the full court to grant an en banc review without someone formally requesting it.

The three judges on Monday ruled that the vote should be stopped because it would not allow equal protection of all voters since voters in the six counties could find that as many as 3 percent of their ballots were invalidated by faulty machinery.

The judges made the ruling borrowing logic from the U.S. Supreme Court's decision in Bush v. Gore (search), the case stemming from the disputed 2000 Florida recount.

In Bush v. Gore, the Supreme Court stopped Florida's recount on grounds that Florida lacked uniform standards on how to recount disputed votes. That violated the Equal Protection Clause (search), because not all votes were being treated equally, the high court said.

The same theory applies to California, the appeals court ruled, because those who would be using older machines would not be on equal footing with voters using more modern systems. The errors add up to 40,000 voters who might have their punch-card ballots excluded, the court said.

Noting the uproar over the 2000 presidential election, the judges said an Oct. 7 recall vote would be a "constitutionally infirm election" and that not stopping it now would pave the way for "bitter, postelection litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."

The 9th Circuit Court has 17 Democrats, nine Republicans and 2 vacancies. Fourteen of the judges were appointed by former President Clinton, who was out campaigning with Davis over the weekend.

Regardless of how long the postponement lasts, the election will proceed. Candidates kept that in mind on Tuesday as they continued to press on with their campaigning across the state.

Davis appeared with presidential candidate Sen. Bob Graham of Florida and the Rev. Jesse Jackson.

Arnold Schwarzenegger (search) and state Sen. Tom McClintock (search) met with sought the support of fellow Republican Peter Ueberroth, who dropped out of the campaign last week and said he would endorse the candidate who had the best plan for increasing jobs in the state.

After meeting with Schwarzenegger and McClintock, Ueberroth said he was impressed by both but wanted to meet with Bustamante before throwing his support behind anyone.

Fox News' Major Garrett and Adam Housley and the Associated Press contributed to this report.